Privacy Trumps Right to Know

Article excerpt

Privacy won out over the public's right to know in a Freedom of Information Act case decided by the Supreme Court in March.

The decision drew little attention when issued, perhaps because the quirky facts of the case may have appeared inapplicable to broader issues of freedom of information.

The court, citing privacy concerns, denied a request by California lawyer Allan Favish for government death-scene photographs of former Clinton Administration White House aide Vince Foster.

But the ruling in National Archives and Records Administration v. Favish may prove one of the most harmful FOIA decisions in years for the media and others seeking government documents. It strengthens the hand of government agencies seeking to invoke privacy as a reason not to release government information.

A Justice Department analysis of the decision advised other agencies that it "encompasses a full range of privacy-protection considerations ... that can guide future FOIA decision making." The analysis also noted that under the decision, Foster's status as a public figure and prominent government official did not lessen his - or his family's - claim to privacy.

"In the future, other potential beneficiaries of the FOIA's privacy exemptions should be no less entitled too such treatment," the government memo stated.

Favish, a California lawyer with a longstanding interest in the 1993 death of Clinton White House aide Vince Foster, originally filed the case. Even though five investigations have determined that Foster, then deputy White House counsel, died by suicide, Favish and others have questioned that conclusion.

He sought government photos of Foster's body taken at a park in Virginia. The Office of Independent Counsel for the Whitewater and other Clinton-era investigations held the photos. It denied the request, and Foster's family also intervened in the litigation to stop their release. When the independent counsel wound down its operations in early 2004, the National Archives got the photos.

Whereas traditionally, FOIA requesters do not need to explain why they seek certain documents, the court's ruling requires that when privacy interests come into play, "the requester must produce evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred."

That new standard brought swift objections from open government advocates.

"The new requirement that requesters must show evidence of government wrongdoing before such records will be released will almost surely prevent reporters and other interested citizens from investigating suspicious deaths," said Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press. "I don't know how you can expect requesters to prove a negative before they are entitled to a record under the Freedom of Information Act."

The FOIA, long a valued tool for the press and the public, nonetheless allows government agencies to withhold documents for a variety of specific reasons.

Under exemption 7(C), the government may refuse to disclose materials that could, if released, cause an "unwarranted invasion of personal privacy. …